Symantec Corporation v. Global Impact, Inc., et al

Filing 920090311

Opinion

FOR PUBLICATION

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
SYMANTEC CORPORATION, Plaintiff-Appellee, v. GLOBAL IMPACT, INC., a Florida Corporation doing business as www.global-impact.com, Global Impact, Global Impact, Inc. Distribution, and Global Impact Corporation; JOSEPH CRISTINA, an individual, Defendants-Appellants.

No. 07-56758 D.C. No. CV-07-00126-DMS ORDER

Appeal from the United States District Court for the Southern District of California Dana M. Sabraw, District Judge, Presiding Submitted March 4, 2009* Pasadena, California Filed March 11, 2009 Before: Diarmuid F. O'Scannlain, Pamela Ann Rymer, and Kim McLane Wardlaw, Circuit Judges.

*The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

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SYMANTEC CORP. v. GLOBAL IMPACT

COUNSEL Lorne Adam Kaiser, Romanello Professional Association, Sunrise, Florida, for appellants Joseph Christina and Global Impact, Inc. Mark D. Baute, Patrick M. Maloney, and Henry H. Gonzalez, Baute & Tidus LLP, Los Angeles, California, for appellee Symantec Corporation.

ORDER Global Impact, Inc. ("Global") appeals the district court's orders denying its motions to set aside the entry of default and reconsider the same. The clerk entered default against Global when it failed to plead or otherwise defend the adversary proceeding brought by Symantec Corporation. We dismiss because we lack jurisdiction over this appeal. Although neither party raised the issue of our jurisdiction to entertain this appeal, we have a duty to consider it sua sponte. See Gupta v. Thai Airways Int'l, Ltd., 487 F.3d 759, 763 (9th Cir. 2007). Contrary to Global's assertions, the district court has not entered a default judgment against it; it has entered only a default. See Fed. R. Civ. P. 55(a)-(b) (describing the two-step process of "Entering a Default" and "Entering a Default Judgment"). Whereas we have jurisdiction to review a district court's order denying a motion to set aside the entry of a default judgment, see 28 U.S.C. § 1291; Jeff D. v. Kempthorne, 365 F.3d 844, 849-50 (9th Cir. 2004), we lack jurisdiction over an appeal from an order denying a motion to set aside the entry of default alone, see Haw. Carpenters' Trust Funds v. Stone, 794 F.2d 508, 512 (9th Cir. 1986) (entry of default is not a final appealable order); Baker v. Limber,

SYMANTEC CORP. v. GLOBAL IMPACT

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647 F.2d 912, 916 (9th Cir. 1981) (same). Accordingly, we lack jurisdiction over this appeal.1 DISMISSED.

Because we lack jurisdiction over this appeal, we express no opinion on the merits of the district court's orders.

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